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Who Wants To Unplug The NSA? Not Arizona's State Agencies

Revelations last spring that the National Security Agency secretly gathered information on the communications of millions of Americans have led to a groundswell of legislation aimed at reining in government surveillance. But the response of state agencies in Arizona, one of the states where a popular anti-spying bill is furthest along, indicates unauthorized collection of personal information is deeply entrenched at both the state and federal levels.

Arizona is one of thirteen states where legislators have proposed a bill that would prohibit states from providing assistance to a federal agency, like the NSA, that collects electronic data or metadata without a warrant. Originally drafted by nonpartisan legal activists, the bill, which is often referred to as the Fourth Amendment Protection Act, has proven popular across the political spectrum thanks to growing unease about the government’s ability to track virtually everything a person does online.

In California, the bill was sponsored by Ted Lieu, a Democratic senator who successfully banned therapists from trying to convert gay minors in California. In Oklahoma, it’s being pushed by Lewis Moore, a Republican representative who has been active in fighting what he views as unconstitutional federal intrusions into state’s rights—for example, the Affordable Care Act. In Arizona, the bill’s sponsor is Kelli Ward, a newly elected state senator who also supports the nullification of federal gun laws.

Given the bill’s broad appeal to people of diverse political viewpoints, its supporters are not anticipating major opposition. “I am not aware of any pro-NSA lobby group,” Lieu said in an interview. In Vermont, Teo Zagar, a Democratic state rep who is co-sponsoring the bill along with a ProgressiveProgressive, a Republican and an Independent, said he believes he would have been able to sign up most of state’s 150 representatives as additional sponsors if he had more time.

But the bill is far from sailing through state legislatures. It’s already stalled in committee in Indiana, Mississippi and Washington. At a public hearing on the bill in Arizona last month, half a dozen state agencies complained it would prevent them from day-to-day collaboration with federal agencies.

In an interview, Ward said the state agencies are misreading the bill. Written in typical legalese, the bill prevents state governments from providing federal agencies with material support such as water and electricity from state-owned utilities or the resources of state universities if they collect electronic data or metadata without a warrant. Another provision forbids the use of information gathered without a warrant in a criminal investigation or prosecution.

Spokespeople for Arizona’s state agencies, including the Arizona Department of Revenue and the Arizona Department of Corrections, maintain the language of the bill prevents sharing electronic information of any kind. Henry Darwin, director of the Arizona Department of Environmental Quality, which monitors air quality and manages programs for handling polluted runoff, said, “any information that we collected that was given to EPA would be contrary to this bill.”

Daniel Romm, legislative liaison, Arizona Department of Housing, said an unintended consequence of the bill was that the department would have to choose between violating the law and not providing the U.S. Department of Housing and Urban Development with information required for federal grants.

“We believe that virtually every federal grant we receive would be in jeopardy,” said Colby Bower, chief legislative liaison for the Arizona Department of Health Services.

In interviews, agency spokespeople clarified that they were not afraid that other federal agencies were using data collected by the National Security Agency without a warrant or that the agencies themselves were collecting electronic data and metadata without a warrant. Rather, they said, they were afraid the bill prohibited their own information-gathering methods.

Matthew Kellegrew, a legal fellow at the Bill of Rights Defense Committee, which helped draft the legislation the Arizona bill is modeled on, said the agencies appear to be misconstruing the language of the bill. “It only applies to the very narrowly specified agents described in the law,” he said.

“I think their desire is to basically just kill the bill,” Ward said. “I can tell you there is no language in the bill that affects state agencies doing their job.” She has offered the agencies an amendment that clarifies the bill’s intent. While agency spokespeople still continue to grumble the bill is too broad, they currently describe their position on it as neutral.

The bill has cleared two committees and is currently waiting to be scheduled for a vote on the Arizona Senate floor. “What I am trying to do is ban the state of Arizona from helping the federal government violate the Fourth Amendment,” Ward said. “Technology has surpassed our existing laws. We have to stand firm with our constitutional right to privacy and our Fourth Amendment right.”

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